Citizens United and Its Critics

Testifying before the Senate Judiciary Committee regarding her confirmation as a Supreme Court Justice, Solicitor General Elena Kagan summed up in a cool and even-handed manner the arguments she and her opponents in the Citizens United v. FEC case had made to the Supreme Court. The “strongest argument of the government,” she said, “was the very substantial record that Congress put together” demonstrating that money spent by corporations and unions “could have substantial corrupting effect on the political process.”

On the other side of the case, she recalled, there were “certainly strong arguments,” in particular “that political speech is the highest form of speech under the First Amendment entitled to the greatest protection and that the courts should be wary of Congress regulating in this area in such a way as to protect incumbents to help themselves.” Those, she repeated, “are strong arguments.”

That summary, neatly encapsulating two rounds of oral arguments, briefs of the parties, fifty-four briefs amicus curiae, and hundreds of pages of judicial opinions in the ruling, bears little resemblance to most of the far more overheated and often overwrought descriptions of the case offered to the public.

I wasn’t surprised by what seems to have been the general disapproval of the ruling. Campaign finance “reform” is generally viewed as an unmitigated good and is normally uncritically praised in publications and in the public statements of politicians. So a decision of the Supreme Court holding unconstitutional major elements of legislation ostensibly drafted to help take money out of politics was never going to be popular.

What I was less prepared for was the fury of critics of the opinion and the fierceness of their criticism. The ruling was treated as a desecration. How often, after all, does a scholar of such extraordinary distinction as Ronald Dworkin simply refuse to entertain the possibility that the Court—right or wrong—meant what it said? But for Dworkin, the Court’s ruling was not only unpersuasive, not only wrong-headed, but was written in bad faith. It resulted not from some sort of failure of analysis but either from the Court’s “instinctive favoritism of corporate interests” or its desire to favor the Republican Party. One of the nation’s leading scholars on election law, Richard L. Hasen, was little more restrained, describing a line of the ruling as sounding “more like the rantings of a right-wing talk show host than the rational view of a justice with a sense of political realism.” And then there were the journalists, typified by CNN’s Jeffrey Toobin, who characterized the opinion as resting on “bizarre legal theories,” and Newsweek’s Howard Fineman, who dismissed the decision as “one of the more amazing pieces of alleged jurisprudence that I’ve ever read.” The New York Times, in separate editorials, excoriated the ruling as “disastrous,”“terrible,” and “reckless.”

I was still less prepared for something else. The Citizens United ruling is rooted in the First Amendment. That is its basis, its only basis. But critics of the ruling often chose not to respond to—sometimes not even to mention—Justice Kennedy’s First Amendment analysis in the majority opinion at all, as if the Court had simply ruled that Congress had passed a law with which it emphatically disagreed and would therefore strike down. President Obama, a former professor of constitutional law, denounced the ruling when it was released and then again in his State of the Union speech without even adverting to the Court’s reliance on the First Amendment. The Nation magazine published a five-page editorial condemning the ruling and urging adoption of a constitutional amendment to overturn it without even mentioning its First Amendment roots. And E.J. Dionne, Jr., in five columns published in the Washington Post both before and after the ruling, first warned of and then denounced the Court’s “astonishing display of judicial arrogance, overreach and unjustified activism.” He referred to the First Amendment only once in the five articles, characterizing “[d]efenders” of the ruling as “piously claim[ing] it’s about ‘free speech.’”

It is not as if the facts of the case could lead someone even vaguely knowledgeable about the First Amendment to recoil from its citation. Citizens United is a conservative group partially funded by corporate grants. It prepared a documentary denouncing in the harshest terms then-Senator Hillary Clinton when she was considered the front-runner for the Democratic nomination for President in 2008. The organization sought to show the documentary on Video-on-Demand during one of the late-campaign “blackout periods” during which the Bipartisan Campaign Reform Act of 2002 (BCRA) banned independent expenditures by corporations or unions supporting or opposing the election of candidates on television, cable, or satellite. To rely on the First Amendment to defend the speech of an ideologically charged group that sought to affect the choice of the next President hardly seems a stretch.

Nor had Justice Kennedy conjured up a First Amendment argument not before articulated. The first law to bar corporations and unions from using their funds to make independent expenditures designed to affect federal elections was the Taft-Hartley Act, adopted in 1947. Contributions by corporations to candidates had been barred since 1907, but not until the adoption of Taft-Hartley were independent expenditures—that is, money spent supporting a candidate in a manner uncoordinated with him or her—deemed criminal. From its adoption, the constitutionality of the statute was viewed as dubious. President Harry S. Truman vetoed the bill on the ground that it was a “dangerous intrusion on free speech.”

Justice Kennedy’s analysis was rooted in two well-established legal propositions. The first, that political speech—not to say political speech about whom to vote for or against—is at the core of the First Amendment, is hardly novel. First Amendment theorists have occasionally debated how far beyond political speech the Amendment’s protection should be understood to go, but there has never been doubt that generally, as Justice Kennedy put it, “political speech must prevail against laws that would suppress it, whether by design or inadvertence.” Nor has it been disputed that the First Amendment “has its fullest and most urgent applications to speech uttered during a campaign for political office.”

The second critical prong of Justice Kennedy’s opinion addressed the issue of whether the fact that Citizens United was a corporation could deprive it of the right to endorse candidates by making independent expenditures that individuals had long since been held to have. In holding that the corporate status of an entity could not negate this right, Justice Kennedy cited twenty-five cases of the Court in which corporations had received full First Amendment protection. Many of them involved powerful newspapers owned by large corporations; others involved nonpress entities such as a bank,a real estate company, and a public utility company. Justice Stevens’s dissenting opinion (but not most of the published criticism of the Citizens United ruling) took no issue with this historical record, acknowledging that “[w]e have long since held that corporations are covered by the First Amendment.”

The inherent First Amendment dangers of any statute barring close-to-election speech advocating the election or defeat of candidates for office were starkly illustrated during questioning by the Justices of counsel for the United States. BCRA itself only applied to broadcast, cable, and satellite. But the logic of the government’s position appeared to lead inexorably to the proposition that books as well could constitutionally be banned if funded by corporations or unions at times close to a primary or election. Deputy Solicitor General Stewart, representing the government in March of 2010, did his best to avoid that issue but finally—and honorably—gave up the ghost:

JUSTICE KENNEDY: Just to make it clear, it’s the government’s position that under the statute, if this [K]indle device where you can read a book which is campaign advocacy, within the 60-30 day period, if it comes from a satellite, it’s under—it can be prohibited under the Constitution and perhaps under this statute?

CHIEF JUSTICE ROBERTS: Take my hypothetical. [A book] doesn’t say at the outset. It funds—here is—whatever it is, this is a discussion of the American political system, and at the end it says vote for X.

MR. STEWART: Yes, our position would be that the corporation could be required to use PAC funds rather than general treasury funds.

On reargument five months later, then-Solicitor General Kagan was well prepared to deal with the uproar that followed Stewart’s response. She did so by seeking to draw a different line, arguing that while one section of the statute at issue, which also limited corporate and union expenditures, could cover “full-length books,” there would be a “quite good as-applied challenge” were it used in that manner. Here was her best shot in response to a question she surely anticipated more than any other: could books be banned under the government’s theory or not?

GENERAL KAGAN: [W]e took what the Court—what the Court’s—the Court’s own reaction to some of those other hypotheticals [about books] very seriously. We went back, we considered the matter carefully, and the government’s view is that although 441b does cover full-length books, that there would be [a] quite good as-applied challenge to any attempt to apply 441b in that context. And I should say that the FEC has never applied 441b in that context. So for 60 years a book has never been at issue.

JUSTICE SCALIA: What happened to the overbreadth doctrine? I mean, I thought our doctrine in the [First] Amendment is if you write it too broadly, we are not going to pare it back to the point where it’s constitutional. If it’s overbroad, it’s invalid. What has happened to that[?]

GENERAL KAGAN: I don’t think that it would be substantially overbroad, Justice Scalia, if I tell you that the FEC has never applied this statute to a book. To say that it doesn’t apply to books is to take off, you know, essentially nothing.

CHIEF JUSTICE ROBERTS: But we don’t put our—we don’t put our First Amendment rights in the hands of FEC bureaucrats; and if you say that you are not going to apply it to a book, what about a pamphlet?

I offer no critical comment about either advocate for the government. Both did precisely what the best Supreme Court advocates attempt to do when confronted with questions that expose the weakest link in their argument—try to avoid answering directly and then, when necessary, answer directly. Both were candid with the Court, Stewart conceding that the government’s position on the constitutionality of the statute could justify as well a ban on books and Kagan acknowledging that the text of one relevant section of law already covered books. But their answers—the earlier seeking to provide constitutional justification for the banning of books, the latter attempting the same with respect to pamphlets—are hopeless. No relevant constitutional distinction can be drawn between books and pamphlets, and no distinction in this area between both books and pamphlets and broadcast and cable makes any sense at all.

Did Justice Stevens and the other dissenters really believe that but for a congressionally drafted media exception such as was set forth in BCRA, newspapers owned by large corporations could be held criminally liable for endorsing candidates for federal office? Did they believe that the First Amendment would permit corporations or unions to be categorically banned from distributing books or pamphlets endorsing or damning candidates for the presidency? Or that Time Warner could produce the same documentary as had Citizens United, with the first protected by the First Amendment and the second unprotected? We cannot know because the dissenting opinion does not tell us. What we do know is that the dissenters voted to sustain a ruling holding that a political documentary seeking to persuade the public that Hillary Clinton was unfit to be elected President could be treated as criminal.

I do not suggest that no difficult issues are raised in this area. The determination of what constitutes “corruption” in a political context is difficult. The dangers of unrestricted corporate spending drowning out the voices of others may seem unlikely ones to me, but they certainly cannot be discounted out of hand. Nor can it be denied that the potential remains for some increase in what is referred to as “the appearance of corruption” as a result of vastly increased corporate or union involvement in electoral politics—if that, in fact, occurs. While my own views, like those expressed by Justice Kennedy in an earlier case, would protect political speech categorically against both of the latter interests, I can understand how views of others may differ. What I find inexplicable is the willingness of so many not even to acknowledge, let alone weigh, the powerful First Amendment interests at all.

But that was the tack taken by too many commentators who focused exclusively on the potential (but necessarily speculative) political impact of the ruling and whether the Court was guilty of unacceptable judicial activism. Yet for all the angst about the Citizens United ruling and all the denunciations of it, the ruling is based on the most firmly established and least controversial First Amendment principles. So for me, the truly disturbing visage of the case is not that five members of the Court gave such weight to the First Amendment that some long-standing bans on corporate and union participation in the nation’s electoral process fell; it was that four members of the Court and many of its most distinguished and powerful observers serenely acquiesced in the criminalization of a documentary urging Americans not to elect as President a leading candidate for that position.

There is a different sort of recklessness reflected in that comparison. It is one thing to say that the Court’s First Amendment jurisprudence with respect to overbreadth must be followed even with respect to the appalling speech at issue in Stevens. But it is quite something else to suggest that an opinion that protects, as the First Amendment requires, potentially harmful speech of no social value at all should be extolled while another ruling that protects the political speech at the heart of the First Amendment should be so disparaged.

That eight members of the Court in Stevens joined in an opinion that protected speech that may well do some harm and surely does no good offers yet another perspective on the criticism of Citizens United. Much of the criticism of the ruling stems from concern about its potentially distorting impact on American politics of too much corporate or union power. Professor Burt Neuborne, one of the nation’s most accomplished First Amendment experts and a vigorous critic of the opinion on the ground that it could likely “have a significantly deleterious effect on the functioning of American democracy,” responded to a question about his views of the case by observing that “[i]f that doesn’t happen, then I think it’s no harm, no foul. I don’t care if they want to spend their money this way if it doesn’t adversely affect American democracy.” The notion that “American democracy” should be defined in a manner that justifies the criminalization of speech about whom to vote for is itself a disturbing one. So is the suggestion that the protection of speech should be dependent upon whether lawmakers or jurists conclude that particular speech furthers or harms democracy. As Stevens itself concludes, the First Amendment does not “permit the Government to imprison any speaker so long as his speech is deemed valueless or unnecessary, or so long as an ad hoc calculus of costs and benefits tilts in a statute’s favor.”

Two months after its ruling in Stevens, the Court, by a 6-3 vote, held that Congress may constitutionally ban coordinated speech and other advocacy undertaken in conjunction with a group designated as a terrorist organization, even if the speech was otherwise protected by the First Amendment and did not in any way endorse any terrorist acts. In Holder v. Humanitarian Law Project, the Court held that a group that planned to train two entities designated as terrorist organizations—the Kurdistan Workers Party and the Liberation Tigers of Tamil Eelam—in the practice of wholly nonviolent dispute resolution could constitutionally be held to violate the federal law banning material aid to terrorists.

Three of the Court’s dissenters in Citizens United—Justices Breyer, Ginsburg, and Sotomayor—dissented, observing that the proposition that “speech and association for political purposes is the kind of activity to which the First Amendment ordinarily offers its strongest protection” is “elementary.” But that elementary proposition, compressed in the dissenting opinion in Citizens United into the more grudging proposition that “of course . . . the First Amendment closely guards political speech,” was treated as not at all so self-evident in that opinion.

That, it seems, is to be the fate of Citizens United amongst far too many of those who sit in judgment on it. I have a different view. When I think of Citizens United, I think of Citizens United. I think of the political documentary it produced, one designed to persuade the public to reject a candidate for the presidency. And I ask myself a question: if that’s not what the First Amendment is about, what is?

Floyd Abrams, a senior partner at Cahill Gordon & Reindel LLP, represented Senator Mitch McConnell as amicus curiae in the Citizens United case. The author greatly appreciates the assistance of Ben Schatz in the preparation of this essay and is grateful to Sophia Brill and the staff of The Yale Law Journal Online for encouraging the preparation of the essay and offering insightful comments on it throughout its preparation.